Borough at odds with gravel pit over excavation

Posted: Thursday, August 26, 2004

By HAL SPENCEPeninsula Clarion

A gravel pit off Kalifornsky Beach Road that earlier this year became the focus of complaints that extraction operations might have disturbed an aquifer feeding nearby wells will be back before the Kenai Peninsula Borough Planning Commission on Sept. 13.

Pit owner, Mercedes Gibbs, has filed a land-use permit application for a materials site and proposes to excavate 6,000 cubic yards of gravel per year from the pit located at Ciechanski Road and Virginia Drive.

Gravel extraction work has existed there on and off since at least the mid-1980s, and the pit often supplied gravel to local and state road projects. However, earlier this year, when further digging led to complaints, borough planners reviewed the records and determined, first, that the pit lacked a valid land-use permit and, second, that there were no records demonstrating that it should qualify for grandfather status.

The application headed for the planning commission seeks a valid land-use permit on 18 acres of the 27.7-acre parcel, essentially the 18 acres already developed as a gravel pit. A public hearing before the commission is scheduled for Sept. 13, in Seward, at the Institute of Marine Science.

In May, Travis and Crystal Penrod, neighbors to Gibbs' pit, sought to have extraction operations stopped. They feared continued digging might impact their well and those of other neighbors. After discovering no valid permit existed, borough officials ordered a halt to digging operations. Gibbs applied for a new permit. At its May 10 meeting, however, the planning commission denied that request citing, among other problems, that backfilling materials already dumped into the pit apparently violated dumping rules.

The Penrods also sought a determination from the Alaska Department of Environmental Conservation regarding the potential for aquifer damage posed by the pit, but other than a cursory inspection, DEC officials took no action.

Mercedes Gibbs' family homesteaded the property in which the pit is dug. Over the years, the neighborhood has become primarily residential. Reaction to the growth of the pit has been mixed, with some neighbors actively seeking its closure and others willing to see extraction continue provided the property is eventually restored. A valid borough permit would include such a requirement, said Max Best, the borough's director of planning.

Not long after the commission's rejection of Gibbs' permit application, excavation work resumed inside the pit in clear violation of borough code. According to borough records, on June 25 the borough sent Jason Foster, owner of Quality Earthmovers Inc., the pit's sole operator under an agreement with Gibbs, a cease and desist order barring further activity within the pit until a valid permit was obtained.

The borough documented evidence of extraction on July 1. On July 19, the borough issued a citation to Foster after receiving additional evidence of continuing activity. The order imposed a $100-per-day fine on Foster commencing, retroactively, on June 25. Foster was warned that stiffer fines were possible and that he could face court action if the violations did not stop. Best noted that although Gibbs' land-use application was now pending, Foster still had no right to operate in the pit.

"That pit is grandfathered in," Foster insisted in an interview Monday, adding that as far as he was concerned it always had been, even though the borough couldn't seem to locate any written record.

That "baffles us, the borough, everybody," he said, "but I'm not going to shut down my business."

Foster said Kevin Williamson, a borough planner, had told him what he could and could not do at the pit. He was allowed, he said, to haul stockpiles of gravel within the site, but was prohibited from conditioning, excavating or quarrying more gravel. Williamson could not be reached for comment.

Foster apparently has little use for the borough's order. He said that the very day he got the notice to stop operations he started digging anyway in defiance.

"I wanted to call their bluff, I guess," he said.

Gravel was excavated for a total of three days for "justifiable projects," he said, adding that he intended to do so again, even before the September planning commission meeting, if the need for gravel arose. He also expressed confidence the commission would issue a valid permit after the hearing.

"I've jumped through all the hoops," he said.

Best said that if Gibbs' application showed compliance with borough code provisions, there should be no impediment to acquiring a valid permit.

Borough Attorney Colette Thompson said the borough is pursuing collection of the fines through normal channels. Planning officials must first determine how many days' violations there have been, she said.

In other business, the planning commission also is expected to consider a land-use permit for another gravel pit, this one owned by Anthony Pearse and located near Longmere Lake in the Dawn Estates Subdivision.

Pearse plans to excavate 2.5 acres and take out approximately 20,000 cubic yards of gravel. He expects the pit to last about five years, with excavation cutting the land to road level. It is to be contoured for home construction or sold as lots. Pearse's application indicates his intent to separate and stockpile for future use any topsoil that is not promptly redistributed to an area being reclaimed.

Written comments concerning the two land-use permit applications will be accepted and made part of the public hearing record. Comments must be received by the planning department prior to 5 p.m. Sept. 10.